All entries on Feminist Legal Clinic’s News Digest Blog are extracts from news articles and other publications, with the source available at the link at the bottom. The content is not originally generated by Feminist Legal Clinic and does not necessarily reflect our views.
[F]or campaigning to protect women’s sport, Smith has now been subjected to nine separate rounds of litigation, including three applications for Apprehended Violence Orders (only one was upheld on appeal) and, most recently, two findings of unlawful vilification relating to her commentary about Stephanie Blanch and Riley Dennis – both trans-identifying male players competing in the women’s soccer category. This is the first time someone has been found guilty of “transgender vilification” in NSW.
The main judgments were handed down in August, but on Friday the Court imposed a $95,000 penalty ($55,000 to be paid to Blanch and $40,000 to Dennis), which doubles if not paid within 28 days, and ordered Smith to issue a public apology. She has said she intends to appeal.
Under NSW’s transgender vilification law (section 38S of the Anti-Discrimination Act 1977), a person commits unlawful vilification if a public act is capable of inciting “hatred, serious contempt or severe ridicule” of someone because they are transgender, even if that was not the speaker’s intention.
Crucially, the test is purely objective: the Court does not need to find actual hatred, actual incitement, or any intention to cause harm. It is enough that the words could hypothetically cause someone to react strongly.
In Smith’s case, Deputy Chief Magistrate Freund found that describing trans-identifying male players as “he”, “male”, “man”, “fella”, “bloke”, “bloke in a frock”, posting or sharing publicly available images and sports statistics enabling identification of the players, and framing the participation of males in women’s sport as unfair, unsafe or deceptive “evoked fear” and could lead others to harbour “contempt”, “hatred” or “ridicule” of the players. What’s more, because Smith used real examples to illustrate the policy failures and did not have the players’ feelings front of mind, her advocacy was not protected by the Act’s section 38S(2)(c) exemption for acts done “reasonably and in good faith” for genuine discussion in the “public interest”.
[P]ersonal comments against Blanch and Dennis posted by others on Smith’s social media posts submitted in evidence and which contributed to the finding against her, highlight the importance of keeping criticism focused on policy, not people.
One of two things must happen in Smith’s case: The decision must be overturned on appeal, or NSW’s vilification laws must be reformed to ensure that genuine harassment is prohibited while political debate – especially advocacy for women’s sex-based rights – remains lawful. Women must be free to describe sex-based harms and use real examples without fearing financial ruin or prosecution. This is not merely a legal issue; it is a democratic one. The future of women’s sport, the rights, safety and dignity of women and girls, and free speech in Australia depends on restoring this balance.
Source: The case of Kirralie Smith and how NSW’s anti-vilification laws are being weaponised against women
